Jersey & Guernsey Law Review – June 2011

CASE SUMMARIES

The following key indicates the court to which the case reference refers:

JRC Royal Court of Jersey

GRC Royal Court of Guernsey

JCA Jersey Court of Appeal

GCA Guernsey Court of Appeal

JPC Privy Council, on appeal from Jersey

GPC Privy Council, on appeal from Guernsey

CIVIL PROCEDURE

Security for costs

Cafe de Lecq Ltd v RA Rossborough (Ins Brokers) Ltd Royal Ct (Clyde-smith, Commr and

Jurats Clapham and Allo) [2011] JRC 011

AD Robinson for the plaintiff/respondent; NF Journeaux for the defendant/appellant

The plaintiff, a Jersey company, claimed £953,500 from its insurance broker

following the refusal of the plaintiff’s insurers to cover losses caused by a fire. The Master

refused the defendant’s application for security for costs. The defendant appealed to the

Royal Court. The question was raised as to the principles to be applied in determining an

application for security for costs against a resident corporate plaintiff. The Master had

found that there was a presumption or principle that Jersey resident plaintiffs, whether

natural or corporate, should not be required to provide security and on the facts declined

to award security.

Held, upholding the appeal—

Appellate approach. The approach of the Court on an appeal from a decision of the

Master was well established: “the Court has ... to consider the matter afresh and reach its

own conclusion whilst, of course, taking due account of the decision of the Master and the

reasons for his decision”: Garfield Bennett v Philips.1

Jurisdiction to award security for costs. Rule 4/1(4) of the Royal Court Rules

2004 provides that “Any plaintiff may be ordered to give security for costs”. The Court has

a very wide jurisdiction (covering corporate as well as individual plaintiffs) to order security

for costs and the issue in the present case was the principles upon which that jurisdiction

should be exercised.

1 6 November 2002, unreported, 2002/214.

Impact of European Convention on Human Rights—Leeds v Admatch. The

impact of the ECHR on the general practice of ordering security against non-resident

plaintiffs was considered by the Court of Appeal in Leeds Utd v Admatch.2 Applications for

security for costs against non-resident plaintiffs should be assessed on an individual basis:

the indiscriminate practice of requiring security for costs from plaintiffs resident outside

Jersey constituted discrimination on the ground of status under art 14 of the ECHR in that

it impeded their right of access to the courts under art 6. Whilst the protection of the ability

of a Jersey defendant, if successful, to enforce a costs judgment in its favour was a

legitimate objective, the indiscriminate practice of requiring security from all non-resident

plaintiffs was not a proportionate means of achieving it.

No presumption against security in the case of resident plaintiffs. A

presumption or principle as found by the Master that Jersey resident plaintiffs, whether

natural or corporate, should not be required to provide security was inconsistent with the

decision in Leeds in that it discriminated between plaintiffs on the ground of their

residence.

Principles to be applied following Leeds. The protection hitherto given to resident

plaintiffs had now to be extended to all plaintiffs so that the practice following Leeds

should be as follows:

Consistent with the policy that there should be access to the Courts for all, rich or

poor, and without detracting from its wide discretion to order security where justice so

requires, it will be the general practice of the Court not to require plaintiffs (wherever

resident) to provide security because there is reason to believe that they will be unable to

meet orders for costs against them save:

● In the case of corporate plaintiffs (wherever resident), security may be ordered on

such grounds following the principles set out by the Court of Appeal in AE Smith &

Sons Ltd v L’Eau des Iles (Jersey) Ltd.3

● In the case of non-resident plaintiffs, provision of security may be required to meet

the legitimate objective of protecting the ability of defendants to enforce costs

judgments outside the jurisdiction, such applications to be assessed on an

individual basis.

Effect on beneficial owner not relevant. In determining an application for security

for costs against a corporate plaintiff the Court is concerned with the effect of the order on

the corporate plaintiff, not on its directors, beneficial owners or other backers.

Third party costs order not relevant. The possibility that the successful defendant

may be able to apply for a costs order against a third party in the event that the assets of

2 2009 JLR 186. 3 1999 JLR 319.

the unsuccessful corporate plaintiff are insufficient to meet its costs should not be taken

into account.

Decision: On the facts, the plaintiff’s prospects for success were to be discounted

because at this interlocutory stage the merits were not obviously and heavily in favour of

either party. The plaintiff conceded that (a) it would be unable to meet an adverse costs

order from its own assets and (b) that if a security for costs order were made in the full

amount requested, funding would be provided by its beneficial owner and that accordingly

its cause of action would not be stifled. Thus, applying the balancing exercise set out in

AE Smith, there would be no injustice to the plaintiff to an order for costs being made. As

against that, there would be an injustice to the defendant if no security is ordered in that if

it is successful, it will be unable to recover its costs from the plaintiff. The balance of

justice was therefore in favour of security being ordered and the decision of the Master

was overturned.

CONTRACT

Contracts of insurance—estoppel—vices du consentement—reticence dolosive

Sutton v Insurance Corp of the Channel Islands Ltd Royal Ct (William Bailhache, Deputy

Bailiff and Jurats Kerley and Nicolle) [2011] JRC 027

PC Sinel for the plaintiff; MT Jowitt for the defendant

The plaintiff claimed £46,000 from the defendant under an insurance policy in

respect of a lost Hublot Big Bang watch, which was specified on the policy. Shortly after

purchasing the insurance, the plaintiff, as required by the defendant, supplied the

defendant with a valuation by a firm of jewellers of a Hublot Big Bang watch in the sum of

£46,000. The valuation was not addressed to anyone, there was no reference to a serial

or model number and it transpired that the watch was not with the jewellers at the time of

the valuation. On making the claim the plaintiff was unable, in response to the defendant’s

enquiries, to reveal from whom he had acquired the watch on the basis that it had been

purchased for cash and an exchange of other watches from an unknown third party

through an intermediary who had since died. At the time of entering into the contract the

plaintiff failed to inform the defendant as to the unusual circumstances under which the

watch had been acquired, the circumstances in which he had come into possession of the

valuation and why the watch had not been in the custody of the valuer at the date of

valuation. The defendant was not satisfied as to the ownership, genuineness or value of

the watch and refused to pay. The plaintiff contended inter alia that the defendant was

estopped by estoppel by convention from denying the adequacy of the valuation supplied

on the basis that there was a common understanding that it met the requirements of the

contract. The defendant argued inter alia that it had been induced to enter into the contract

by innocent, or alternatively fraudulent, misrepresentations implicit in the delivery of the

valuation that the plaintiff was the owner of the watch and that it as a genuine Hublot Big

Bang watch.

Held, dismissing the plaintiff’s claim—

(1) The burden of proof was on the plaintiff to prove that (i) that the watch insured

was a genuine Hublot Big Bang watch; (ii) that he acquired lawful title to it; (iii) that it had a

genuine value of £46,000; and (iv) that it had been genuinely lost. That the plaintiff carried

the burden followed from an analysis of the contract of insurance in question and the fact

that the burden of proof generally lies on the party who makes assertions which need to

be established for the purpose of adjudicating the claim or defence.

(2) As a matter of principle all insurance contracts governed by Jersey law are

subject to uberrima fides. This is because this is the established market understanding of

such contracts and because as a practical matter insurance contracts require that the

parties act with good faith towards each other. Any material misrepresentation made by

the insured to the insurer at the time of entering into the contract will entitle the insurer to

avoid liability under the contract. In addition there were clauses in the particular contract

which imposed express requirements of good faith.

(3) It might well be that an obligation of good faith on both sides is a common

understanding in all contracts governed by Jersey law, though it was not necessary to

decide this and full argument was not heard: see Domat, Les Loix Civiles (1745 ed), livre I,

titre I, at ss xii and xiii; Le Gros, Traité du Droit Coutumier (1943) at p 350 when

considering “De la clameur révocatoire ou deception d’outre moitié du juste prix”; and the

judgment of the majority in Snell v Beadle.4 On the other hand English law does not

recognise the principle of good faith as having any general application: Interfoto Pichers

Library Ltd v Stiletto Visual Programmes Ltd.5

(4) Estoppel by convention derives from the English law of contract. The Court

would need to be satisfied that the same gaps existed in the Jersey law of contract as

necessitated the introduction of the doctrine of estoppel by convention before introducing

similar principles into Jersey law. The Royal Court does apply promissory or equitable

estoppel and it may be that estoppel by convention also forms part of Jersey law; but the

Court doubted that it would apply in its entirety since the requirement of mutual

understanding as to the basis on which a contract is to be performed, which is a sine qua

non of estoppel by convention, is already part of the requirements for a valid contract, and

if the assumption on which parties relied does not hold good the remedy probably lies in a

claim that the contract should be set aside for erreur. However even if the doctrine formed

part of Jersey law, the plaintiff had not established the necessary common understanding.

To conclude that the defendant was unable to resist the plaintiff’s claim upon the basis of

4 2001 JLR 118, at 42–46. 5 [1998] 1 QB 433, at 449.

this valuation would be unconscionable. In effect it would mean that if an insurer accepts a

valuation, or simply does not question a valuation and that valuation contains inaccurate

information which the insurer could not have known at the time, the insurer is barred

forever from contending that the valuation is false or inaccurate, or for some other reason

cannot be relied upon. Nor had there been any representation by the defendant that the

valuation was acceptable such as would found a claim in equitable estoppel.

(5) In a number of previous cases the Royal Court had elided mistake,

misrepresentation and erreur and referred to principles of English law. The Court was

concerned not with English or French law but the law of Jersey. This was to be identified

from precedents where they exist and from customary law. Sometimes the cases can be

more properly understood by reference to the law on erreur. The question goes to the

issue whether there was a true common will or volonté. A fraudulent misrepresentation

clearly allows a contract to be avoided. An innocent misrepresentation inducing a contract

but not forming part of its terms may, depending on the facts, and in particular the

materiality and actual impact of the representation, be a vice du consentement going to

the issue whether there was a true common will or volonté, just as erreur or dol.

(6) On the evidence, the plaintiff’s failure to inform the defendant as to (i) the

questionable circumstances in which the watch was alleged to have been acquired; (ii) the

questionable circumstances in which the plaintiff came to be in possession of the

valuation; (iii) the fact that by the date of the valuation, the valuer had not had the watch in

its custody for at least 8 weeks, amounted to a réticence dolosive which enabled the

defendant to reject the claim. Fraud was not proved by the defendant except to that

extent. The doctrine of réticence dolosive was useful in a case such as the present

because it formed part of that package of principles which go to identify whether the

parties to a contract of insurance, being a contract uberrimae fides, have that common will

or volonté to make it, and thus provide a proper basis for an assertion that la convention

fait la loi des parties. Not all silences have the effect of providing grounds for a claim in

nullity. The party making that claim has to relate the alleged réticence dolosive to a

material particular of the contract and its actual impact upon his will or volonté to make the

contract in order to discharge the burden of showing that the claimed ground of nullity has

been established: Toothill v HSBC Bank plc6 considered.

(7) On the facts the plaintiff failed to discharge the burden of showing that he had

acquired title to the watch in question, that it was a genuine Hublot Big Bang Watch, and

that it had a value of £46,000, although on the balance of probabilities the Court was

satisfied that he had lost a watch on the occasion in question.

Quantum meruit

6 2008 JLR 77.

Viberts v Powell Royal Ct (Philip Bailhache, Commr and Jurats Liddiard and Fisher) [2011]

JRC 021

OA Blakeley for the plaintiffs; the defendant appeared in person.

The plaintiffs, a firm of advocates, had been acting on legal aid for the defendant.

The defendant ceased their retainer and, having obtained a loan from a finance company,

instructed Sinels on a fee paying basis and paid them a retainer of £5000. On learning

this, the plaintiffs sought payment of fees for their legal services in the sum of some

£25,000 and issued a summons, relying on their engagement letter which had been

countersigned by the defendant. This set out various circumstances under which the

defendant would be obliged to make a contribution to her fees. These circumstances had

not arisen. However the engagement letter also provided: “In the event that your finances

change ... then you must inform us immediately. If you do not inform us, then we reserve

the right to charge you on what we believe your financial position is. If you do fail to update

us, we will also apply for your Legal Aid certificate to be revoked”. The plaintiffs relied on

this provision, contending that the loan constituted a change in the defendant’s finances

and that they were entitled to their fees.

Held, giving judgment for the plaintiff—

(1) All the constituent elements of a contract were present (Selby v Romeril7) and

there were no vitiating factors. The mutual obligations of the parties were to be found in

the letter of engagement sent by the plaintiffs to the defendant, and countersigned by her.

Taken in the round, the plaintiffs performed the obligations under the contract for legal

services that they had entered with the defendant. The question was then whether the

loan meant that the finances of the defendant had changed. The view of the Jurats was

that it did constitute a change. The defendant was solvent and had a pot of money from

which she could pay fees, even if on a balance sheet test her finances had not changed.

The plaintiffs were entitled to judgment for fees incurred after the engagement letter had

been countersigned by the defendant. However part of the sum claimed related to

services provided before the that date and was not covered by the engagement letter. The

plaintiffs were only entitled to payment on a quantum meruit basis for work done prior to

the signature of the contract.

(2) Lawyers should as a matter of good practice report to clients periodically on the

level of fees incurred, whether the client is legally aided or not, and whether the period is

measured in time or in fee increments. Few clients could now afford an open cheque book

approach. Further the whole approach to the provision of legal services was ripe for

review. It was surely be time for the profession to reconsider its business model and to

adopt what Professor Richard Susskind, in The end of lawyers? Re-thinking the nature of

7 1996 JLR 210.

legal services (Oxford, 2008) called the commoditisation or packaging of legal services for

a fixed fee.

Vices du consentement—meeting of minds

Incat Equatorial Guinea Ltd v Luba Freeport Ltd Royal Ct (William Bailhache, Deputy

Bailiff and Jurats Le Cornu and Liddiard) [2011] JRC 83A

M Goulborn for the plaintiffs; D Le Maistre for the defendant

The defendant contended that the parties had by an exchange of emails reached a

settlement of their dispute and that the proceedings should therefore be discontinued. The

issue was raised as to whether the requirements of Jersey law for a binding contract had

been fulfilled. Both parties agreed that the proper law of the putative contract was Jersey

law.

Held—

Requirements for a valid contract. In Selby v Romeril8 the Royal Court adopted

art 1108 of the French Code Civil, which was based upon the writings of Pothier, an author

whose commentaries on the law of contract have been held in the highest regard in

Jersey, and held that there were four requirements for the creation of a valid contract: (i)

the consent of the party undertaking an obligation; (ii) that party’s legal capacity to enter

into a contract; (iii) “objet” or subject matter of the contract; and (iv) a legitimate “cause” or

reason for the obligation to be performed.

Grounds of nullity. It is because the concept of volonté is so important to the

making of contractual arrangements that the grounds of nullity which exist for erreur, dol,

déception d’outre moitié and lésion become so comprehensible, since they go to whether

there is truly a common will to the contracting parties—in other words, the reality of the

parties’ consent: Marett v Marett.9

Authority of Chitty. Chitty on Contracts is a helpful textbook in assisting the Royal

Court in construction cases, where the language of a particular contract which is under

consideration in the Royal Court is similar to the language which has been under

consideration in the English courts. But it is a textbook which is to be approached with

some caution insofar as the law of Jersey is concerned, as the basic principles of Jersey

law do not have the same provenance. In this case the defendant inappropriately relied on

Chitty. The Court also said, since Jersey law was to be applied to the contract, that

expressions such as “offer and acceptance” and “invitation to treat” were not particularly

helpful in considering the issue that was before it.

8 1996 JLR 210. 9 2008 JLR 384.

Erreur. Erreurs obstacle were distinguished in Marett as being of these kinds—

erreur sur la nature du contrat (a mistake as to the nature of the agreement), erreur sur

l’objet (a mistake as to the subject of the agreement) and erreur sur l’existence de la

cause (mistake as to the basis or purpose of the agreement). Each of these three kinds of

erreur prevented the subjective meeting of minds which was essential for a valid contract

to be formed.

Erreur distinguished from no meeting of minds. However the doctrine of erreur

was generally applied to vitiate a contract which had been made where the erreur went to

the heart of the volonté to make the contract; so that one could genuinely say that there

was a lack of true consent to make it: see Pothier, Traité des Obligations (1827 ed.), B.29,

nos 17–19, This was not the same as saying that there had never been a meeting of

minds in the first place.

Decision. On a proper construction of the email correspondence, the plaintiffs’

agreement had been subject to contract and there was no sufficient meeting of minds so

as to be able to conclude there was a contractual agreement. The application for an order

of discontinuance was accordingly dismissed.

CRIMINAL LAW

Stay of proceedings

Warren v Att Gen Privy Council (Lord Hope, Lord Rodger, Lord Brown, Lord Kerr and Lord

Dyson)

O Pownall QC and S Baker for the appellants; D Farrar QC and N Povoas for the Attorney

General

The appellants were convicted by the Royal Court after a jury trial of conspiracy to

import 180kg of cannabis into Jersey. A crucial part of the prosecution case comprised

evidence obtained by the States of Jersey police as a result of bugging a hire car as it was

being driven across France, Belgium and the Netherlands. The police were advised by a

Crown Advocate that (a) they should not record conversations without the consent of the

relevant foreign authorities but, nevertheless, (b) the Royal Court would be unlikely to

exclude valuable evidence obtained solely on the basis that it had been obtained

unlawfully and that this was ultimately an operational matter for the police. The States of

Jersey Police bugged the car notwithstanding that the relevant foreign authorities had only

given permission for a tracking device to be fitted. The States of Jersey Police deliberately

misled the foreign police and authorities by saying the devices fitted were only a tracking

device and a back-up tracking device. The Attorney General for Jersey and the Jersey

Chief of Police were also misled. There were, however, significant countervailing factors

which weighed against a stay (see (2) below). At a preparatory hearing the Royal Court

(Tucker, Commr) rejected the appellants’ applications for (a) the evidence to be excluded

under art 76(1) of the Police Procedures and Criminal Evidence (Jersey) Law 2003, and

(b) a stay of the proceedings on the grounds of abuse of process by reason of

prosecutorial misconduct. The appellant’s appeals against those decisions were refused

by the Court of Appeal (Vaughan, Steel and Jones, JJ.A, Warren v Att Gen10). The

appellants appealed to the Privy Council against the refusal of a stay. A successful appeal

would have lead to a quashing of the convictions.

Held, dismissing the appeals—

(1) The Court has power to stay proceedings in two categories of case (R v

Maxwell11): (a) where it will be impossible to give the accused a fair trial—in this category,

if the court concludes that an accused cannot receive a fair trial, it will stay the

proceedings without more, and no question of the balancing of competing interests arises;

and (b) where it offends the court’s sense of justice and propriety to be asked to try the

accused in the particular circumstances of the case.

(2) The present case would fell into the second category. In this category, a stay will

be granted if the court concludes that in all the circumstances a trial will “offend the court’s

sense of justice and propriety” (per Lord Lowry in R v Horseferry Road Mags’ Court, ex p

Bennett12) or will “undermine public confidence in the criminal justice system and bring it

into disrepute” (per Lord Steyn in R v Latif13). A balancing exercise is involved. Each case

depends on its own circumstances. In abduction and entrapment cases the court would

generally conclude the balance favours a stay. But rigid classifications are undesirable.

Dicta of Lord Brown in Latif comprised a useful summary of some of the relevant factors. A

“but for” test was not necessarily determinative. It was further unhelpful and confusing to

say that the second category of case is founded on avoiding unfairness to the accused;

unfairness to the accused is the focus of the first category. The Jersey Court of Appeal’s

criticism of R v Grant14 in this regard was rejected by the Board.

(3) The focus of the appeal had to be the decision of the Commissioner: the appeal

had to fail unless it was shown that the Commissioner’s decision was not one which was

reasonably open to him or that he failed to take into account material factors or took into

account immaterial factors. The Appellants contended inter alia that the Commissioner

failed to have sufficient regard to the investigative strategy of the police in this case

calculated to ignore the laws of Jersey and foreign states and to mislead the Attorney

General, the Crown Advocate advising the police, the Chief of the Jersey States Police as

well as the foreign authorities. The case for a stay had considerable weight. The police

were unquestionably guilty of grave prosecutorial misconduct; this was also a “but for”

case. However there were factors which, taken cumulatively, the Commissioner was

entitled to conclude weighed heavily against a stay:

10 2009 JLR 248. 11 [2010] UKSC 48. 12 [1994] 1 AC 42, 74G. 13 [1996] 1 WLR 104, 112F. 14 [2005] EWCA Crim 1089.

● The offence with which the Appellants were charged was serious.

● The ringleader, Warren, was a professional drug dealer of the first order.

● The unwise advice of Crown Advocate to some extent mitigated the gravity of the

misconduct of the police.

● There was no attempt to mislead the Jersey court. It was always intended that

circumstances in which the evidence was obtained would be revealed to the

appellants and Court would be required to decide whether to admit it under art

76(1) of the 2003 Law.

● There was real urgency in this case.

The Commissioner had to undertake a difficult balancing exercise. It was impossible for

the Board to characterise the decision to refuse a stay in this case as perverse or one

which no reasonable judge could have reached.

(4) Lord Hope stressed that the range of operational decisions which the police may

take does not include deliberate law-breaking at home or abroad. Lord Rodger

emphasised that, given the size of Jersey, its geographical position near France and close

contacts with the UK, the States of Jersey police frequently have to co-operate with other

forces which are subject to different laws. The conduct of the police in this case was not

only wrong in principle but risked damaging relations with other police forces and law

enforcement agencies. The fact that the Board had warned the police not to repeat such

conduct would be a factor to be taken into account in future cases.

FAMILY LAW

Appeals—evidence

In re NN Royal Ct (Clyde-Smith, Commr and Jurats de Veulle and Nicolle) [2011] JRC 016

CM Fogarty for the appellant; RE Colley for the respondent.

The father of two children, who was not married to the mother, appealed to the

Royal Court against the decision of the Family Registrar to (a) order indirect contact

between him and the children, and (b) decline to order that he have parental responsibility.

At the hearing before the Deputy Registrar the father indicated that, contrary to

expectation, he would not be giving evidence. The Registrar ruled that that whereas there

was authority under English law for the proposition that parents can be compelled to give

evidence in public law cases, there was no authority to support the proposition that the

Court can compel a parent to give evidence in private law cases. She therefore accepted

that the father could not be compelled to give evidence and indicated that if he did not do

so she would make her decision on the basis of the material before her.

Held, in relation to test on appeal and the father’s declining to give evidence—

Test on appeal. The test on appeal is that now set in Downes v Marshall15:

“an appeal from the Family Registrar should only be allowed if there has been a

procedural irregularity or if, in exercising his discretion, he has taken into account

irrelevant matters, or ignored relevant matters, or otherwise arrived at a conclusion which

the Court believes to be wrong.”

Under this new test, the Court places greater weight on the Deputy Registrar’s exercise of

discretion, recognising her expertise, exposure to the primary evidence and the length of

time spent processing and hearing the particular case. Under the new test, it was not open

for the father to seek on appeal an order that he did not seek from the Registrar unless the

Royal Court first set aside the decision of the Deputy Registrar under the new test.

The father’s failure to give evidence. No point was taken on appeal as to whether

it was correct that a parent could not be compelled to give evidence in private law

proceedings concerning children. Article 2 of the Children (Jersey) Law 2002 requires the

Court to give paramount consideration to the welfare of the children when determining any

question with respect to their upbringing. Bearing this in mind the Court expressed the

view that it must at the very least be entitled, if not obliged, to indicate to the parties the

evidence it would wish to hear in order properly to discharge its statutory duty and it must

be the duty of the parties to provide that evidence if reasonably possible. It cannot be for a

party to decline to provide evidence in the face of an express request by the Court, and

even if he or she cannot be compelled by the Court to provide that evidence, then

depending on the questions that fall to be determined, the Court may well have to draw

inferences adverse to that party, although it is clear that in this case the Deputy Registrar

did not do so.

Children—separate representation

In re Q Royal Ct (Birt, Bailiff and Jurats Le Breton and Morgan) [2011] JRC 054

V Myerson for the Minister for Health and Social Services; D Gilbert for Q; TVR Hanson

for the guardian of Q; C Hall for the mother.

The question was raised in care proceedings as to whether a child in question (Q)

should continue to be separately represented by an advocate . Q was 14 years old at the

time of the judgment. Her views as to the desired outcome of the care proceedings

differed from those of the guardian appointed to represent her.

Held—

15 2010 JLR 265.

(1) In England and Wales there had been a change of approach. Whereas

previously considerations of welfare of the child played a large part in considering whether

the child was of sufficient understanding to instruct an advocate, more weight was now

given to the need for a child to feel that his or her views have been properly

communicated to the court: see Mabon v Mabon16 in private law cases and Re K and H17

in public law proceedings.

(2) However all of the English decisions were made in the context of rules of court

which provided that, if there was a conflict between the views of the guardian and those of

the child, the solicitor had to act on the instructions of the child if the child was of “sufficient

understanding”. That was not the case in Jersey. Article 75 of the Children (Jersey) Law

2002 deals with the appointment of both a guardian and a lawyer: Re KK.18 Both

appointments are discretionary, unlike in England and Wales. Thus, unlike in that

jurisdiction, there is no obligation for a lawyer to be appointed even where the child is of

sufficient understanding. given the very different statutory background, and given the need

always to have regard to the welfare of a child in all public and private law proceedings

concerning children, the Court could adopt a somewhat more flexible approach than in

England and Wales when the views of the guardian differ from those of the child. In such

cases the Court should ask itself two questions—

(i) Is the child of sufficient understanding to give instructions directly to his or her

lawyer? Clearly, if not, that is the end of the matter and the lawyer will continue

to act on the instructions of the guardian, with the guardian fulfilling his duty to

convey the wishes and feelings of the child to the Court notwithstanding the

different view of the guardian as to where the child’s best interests lie.

(ii) If the child is of sufficient understanding, the Court should go on to consider

whether welfare considerations lead to a conclusion that the child should

nevertheless not be authorised to instruct his or her lawyer direct, so that the

lawyer continues to take instructions from the guardian.

The Court would, however, take into account in reaching a decision the changing climate

of opinion as to the importance of the autonomy of the child as described by Mabon.

(3) Although the article does not refer in terms to a “guardian”, it is under art 75 that

the person conventionally called a guardian in family proceedings is appointed, not r 4/2 of

the Royal Court Rules.

(4) The test for “sufficient understanding” is not the same as that known as “Gillick

competence”. The level of understanding that enables a child to make an informed

decision whether to submit to medical treatment or to a psychiatric examination is a much

16 [2005] 2 FLR 1011. 17 [2007] 1 FLR 2043. 18 [2010] JRC 220.

higher level of understanding than is required to enable him to give instructions to a lawyer

on his own behalf (see Thorpe, J in Re H at 449). Some guidance was to be found in a

booklet entitled Good Practice in Child Care Cases published by the Law Society of

England and Wales. While the decision as to competency is ultimately a matter for the

court, assisted if necessary by expert evidence, much weight should be given to the views

of the lawyer who is taking instructions from the child: Re M (Minors) (Care proceedings:

child wishes).19 In order to have sufficient understanding to be permitted to instruct a

lawyer independently of the guardian, a child does not have to have sufficient judgment

and wisdom to know what is best for that child. The test is whether the child understands

what is involved and is able to give coherent (rather than correct) instructions.

(5) Applying those principles to the facts, the Court concluded that Q had sufficient

understanding to be competent to instruct her advocate and that there were insufficiently

strong concerns about any adverse welfare consequences for her representation to be

removed at what was a late stage. The Court therefore ordered that her representation

continue.

MENTAL HEALTH

Legal proceedings

Highfield v Minister for Health & Social Services Court of Appeal (Sumption, Steel and

Rowland, JJA) [2011] JCA 023

DF Le Quesne for the appellant/plaintiff; MH Temple for the respondent/defendant

Article 50 of the Mental Health (Jersey) Law 1969 provides:

“50 Protection for acts done in pursuance of this Law

“(1) No person shall be liable, whether on the ground of want of jurisdiction or

on any other ground, to any civil or criminal proceedings to which the

person would have been liable apart from the provisions of this Article in

respect of any act purporting to be done in pursuance of this Law or any

Order made thereunder, unless the act was done in bad faith or without

reasonable care.

“(2) No civil or criminal proceedings shall be brought against any person in

respect of any such act without the leave of the Superior Number of the

Royal Court, and the Superior Number shall not give leave under this

Article unless satisfied that there is a prima facie case for the contention

that the person to be proceeded against has acted in bad faith or without

reasonable care.”

19 [1994] 1 FLR 749.

On 26 January 2007 the appellant, who had been compulsorily detained in a mental health

unit, sustained severe injuries to his left ankle as a result of attempting to escape. He

issued proceedings contending that the Minister owed him a duty to take reasonable care

for his safety during his detention and that the Minister was vicariously liable for the

negligent failure of staff at the unit to take reasonable steps to prevent him from trying to

escape and injuring himself. However the appellant did not, prior to issuing the

proceedings, obtain the leave of the Superior Number as required by art 50 of the 1969

Law. Since he had commenced the proceedings only at the very end of the applicable

prescription period any further action was now time-barred. The Royal Court held that art

50 applied and that the proceedings were a nullity for want of compliance with the

requirements of art 50(2). The appellant appealed, arguing inter alia that art 50(2) applied

only to proceedings against health professionals and not to proceedings against the

Minister and thus in effect that art 50 is subject to an implicit limitation corresponding to

the express limitation in s 139(4) of the United Kingdom Mental Health Act 1983, which

was introduced by amendment in 1982.

Held, dismissing the appeal—

(1) Article 50(1) is substantive and art 50(2) procedural. The appellant’s problem

arose as a result of art 50(2) which imposed a condition on the right to bring an action. He

had to satisfy the Superior Number before bringing the proceedings that there is evidence

of negligence amounting to a prima facie case. He did not seek to do that and it was now

too late. It was common ground that if art 50(2) applied to the present proceedings, its

effect would be to make them a nullity and that the Court would have no jurisdiction to

entertain them: Seal (FC) v Chief Constable of South Wales Police.20

(2) Access to a court is a fundamental constitutional right and a statute should not

be construed as restricting it unless it does so in clear terms. However art 50(1) did not

seek to restrict access to Court, but was rather a substantive provision which dealt with

the elements of a cause of action, and art 50(2), which did restrict access to the courts, did

so in clear words.

(3) The expression “act purporting to be done in pursuance of this law” in art 50(2)

could not be read literally because to do so would be to go beyond anything which, given

the width of the statutory powers and functions of the Minister, the legislature could

rationally be supposed to have wanted to achieve (for example, construed literally, it would

include acts giving rise to liability under agreements with contractors employed to provide

goods or services to mental health facilities). Wholly general words in a statute may be

given a limited construction by reference to the subject-matter, context and purpose of the

enactment in question: Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd.21

The English courts have found that the implicit limits on the general language of the

20 [2007] UKHL 31. 21 [1971] AC 850.

equivalent provision in s 141 of the Mental Health Act 1959 are to be found in the concept

of control: Pountney v Griffiths.22 The essential feature of the Mental Health Act 1959 and

the Mental Health (Jersey) Law 1969 is that they authorise public officials and hospital

staff to do that which would otherwise be a wrongful invasion of a patient’s liberty, namely

to detain him and while he is detained to control him. Against that background, art 50 of

the Jersey Law, like s 141 of the Mental Health Act 1959, applies to acts of a defendant

purportedly done in the exercise of the statutory function of exercising control over a

patient. By that test, the acts alleged against the Minister by the appellant were within the

scope of the art 50(2). (Whether art 50(2) will also apply to a failure to exercise proper

control over a patient resulting in injury or loss to a third party raised further questions and

was best left until such a case arose.)

(4) This argument that art 50(2) did not apply in favour of the Minister was not

sustainable for the following reasons: (a) it was directly inconsistent with the language of

art 50(1), which provided that “no person” shall be liable for the relevant class of acts, and

with that of art 50(2), which provides that proceedings in respect of such acts may not be

brought against “any person”; (b) in the great majority of cases the Minister will be

concurrently liable (vicariously) with a health professional (who is liable personally) and

the same act could not be treated rationally as being done and not done purportedly

pursuant to the Law; (c) the expressions “want of jurisdiction” and “in bad faith” in art 50(1)

were more appropriate to the Minister directly exercising statutory discretions than his

agents performing ordinary care functions; (d) the statutory purpose of protecting hospital

staff from harassment by unfounded litigation would not be served by preventing actions

without leave against the health professional personally responsible, but allowing them

against the Minister, since they would still commonly have to give evidence in the case

and respond to allegations about their conduct (which was identified as major concern on

health professionals in the UK White Paper of 1978).

22 [1976] AC 315.